Fault

Fault Fault can be generally defined from the Oxford English Dictionary as an “error” or “blame”. In English law, fault can be best described as “taking responsibility for something wrong”. In criminal law, people are guilty, being to blame beyond reasonable doubt. In civil law, people are found liable, being to blame on the balance of probability. Fault is generally an essential requirement of liability in the law of tort. Liability in negligence requires proof of a breach of duty. A breach of duty arises when the defendant fails to act, or not act, as the “reasonable man” would have done. In Bolton v Stone, the defendants acted as the “reasonable man” would have by erecting a high fence around the ground to minimise the risk of people outside the ground being injured by cricket balls. In Paris v Stepney Borough Council, however, the court held that, in light of the potential serious consequences posed by welding to an employee with one eye, the reasonable employer would have provided goggles. Liability under the Occupier’s Liability Act 1957 also requires proof of fault. Under 2.2 (2) (b) a lower duty of care is owed to people on the premises in exercise of their calling, than to other visitors. In Roles v Nathan, the occupiers were not liable when chimney sweeps died from inhaling fumes. They had warned the sweeps of the risk, and it was the responsibility of the sweeps to be aware of the danger. Fault is also relevant to the general defence of contributory negligence. Under the Law Reform Act 1945 s.1 (1), damages are reduced according to the claimant’s responsibility for the damage. In Froom v Butcher, the claimant’s damages were reduced by 25% due to his failure to wear a seat belt. There are, however, areas of tort in which there is no need to prove fault. For example, nuisance is a strict liability tort. The defendant cannot claim as a defence that he/she took reasonable care to avoid causing the nuisance. The rule in Rylands v Fletcher is another strict liability tort. However, since the case of Cambridge Water v Eastern Counties Leather plc, negligence principles have applied in respect of the type of damage caused having to be foreseeable. It is important also to consider the principle of vicarious liability, which imposes liability for someone else’s fault. In the workplace, the employer is liable for torts committed by employees during the course of their employment. This includes torts committed while the employee s doing what he/she is authorised to do but doing it in an unauthorised manner. In Rose v Plenty, the employer had expressly forbidden employees to allow people to ride on the milk floats. The employer was, nevertheless, vicarious liable, when a 13-year-old boy was injured while helping an employee deliver milk. So far, we have considered how fault is generally a requirement for liability in tort, albeit that there are some exceptions. There is also a general principle of no liability without proof of fault in criminal law. To be found guilty of most criminal offences an actus reus and mens rea must be present. The actus reus must usually be committed voluntarily. If the accused is not in control of his/her actions, there are general offences that the accused may raise, including insanity, automatism and duress. In R v Bailey, the accused, a diabetic, successfully pleaded the defence of automatism. He had been in a hypoglycaemic state brought about by a failure to eat after drinking some sugar and water. The mens rea comprises the mental element of the crime. All of the non-fatal offences except that provided by s.18 of the Offences Against the Person Act 1861 are crimes of basic intent. Section 18 is a specific intent crime. All the non-fatal offences, therefore, require proof of fault for a conviction. Similarly, all homicide offences require proof of fault. Murder is the most serious homicide offence. The accused must intend to kill or cause grievous bodily harm. The seriousness of the offence is recognised in the mandatory sentence of life imprisonment. While fault is an essential requirement of liability in most crimes, there are nevertheless some strict liability and some absolute liability offences. Strict liability crimes have no fault requirement in terms of mens rea. In Smedleys v Breed, the defendants were convicted despite having taken all reasonable precautions to prevent contamination of their food products occurring. Absolute liability crimes, however, have no fault requirement either in respect of the mens rea or the actus reus. In Winzar v Chief Constable of Kent, the accused was convicted of being found drunk on the highway after he had been forcefully removed from a hospital and placed on the highway by the police. The injustice of the decision in Winzar is clear. The defendant did not voluntarily commit the offence and arguably should not therefore have had to bear legal responsibility for it. There are very few absolute liability offences, so convictions such as this are rare. However, there are numerous strict liability offences. Strict liability offences are usually justified on the basis that they are for the public good, and they typically deal with issues such as public health and safety, protection of the environment and road traffic. There is the further advantage that court time is saved and costs are reduced when there is no need to prove mens rea. Those in favour of strict liability offences argue also that a higher standard of care is encouraged. However, there is no concrete evidence of this. The legal profession, the judges and the legislature regard the principle of no liability without proof of fault as being especially important in criminal law. A guilty verdict will result in the imposition of a sentence on the defendant and in addition, arguably more importantly, a criminal record. The court has a wide range of sentences at its disposal, some of which directly limit the liberty of the convict, including electronic tagging, probation and incarceration. However, the liberty of the convicted individual is also affected by his/her criminal record, which may, for example, prevent access to certain jobs. The imposition of state sanctions and the restriction of liberty are generally regarded as justified only when the individual has been responsible for his/her actions. The civil law is also based on the notion of individual responsibility. Individuals choose to behave the way they do and should accept responsibility for the outcomes of their actions. However, while liability in civil law is generally based on proof of fault, there has been a shift towards no-fault liability in recent years. Legislation now provides a partial no-fault based system. This is because the requirement to prove fault results in most accident victims not receiving any compensation. Since the enactment of the Consumer Protection Act 1987, producers have been strictly liable for damage caused by their defective products. However, although the producer directly provides the compensation to the claimant, the burden is indirectly borne on society. Producers inevitably recoup the money by raising the prices of their goods. There are however, many accident victims who are required to prove fault, including road accident victims and victims of medical negligence. It is argued that the cost of insurance would have to rise to unaffordable levels were no-fault based liability to be imposed. In conclusion, it would appear that fault should be a requirement of liability more so in criminal law than in civil law. The unfairness of leaving an injured victim without compensation increasingly outweighs the fairness of blameless individuals being required to provide compensation out of state funds. In criminal law, however, the desire to protect the blameless individuals from the outcome of a criminal conviction makes imposition of liability without fault less acceptable.